The more than 178,000 holders of Zimbabwean Exemption Permits (ZEPs), which were due to expire tomorrow, have been given a temporary lifeline by the Gauteng High Court, Pretoria.
Judges ruled that the existing ZEPs shall be deemed to remain valid for another year.
A Full Bench (three judges) remitted the matter back to the Minister of Home Affairs for reconsideration during this time, “following a fair process that complies with the requirements”.
It was further ordered that during the next 12 months, existing ZEPs should be deemed to remain valid. ZEP holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021, which means that no holder of the exemption may be arrested, ordered to depart, or be detained for purposes of deportation or deported in terms of the section 34 of the Immigration Act.
The holder may be allowed to enter or depart from South Africa provided that he/she complies with all other requirements for entry and departure.
No holder should during this time be required to produce a valid exemption certificate, nor an authorisation letter to remain in the Republic, the court ordered.
Judge Colleen Collis, who wrote the judgment, said in the absence of any transparency on the part of Home Affairs, in circumstances where they have a duty to take this court into their confidence but have not, it must be concluded that the minister failed to prove a justification to terminate the ZEP programme.
“Consequently, in the absence of factual evidence, we therefore find that the minister’s decision is an unjustified limitation of rights, which is unconstitutional and invalid in terms of section 172(1) of the Constitution and must be reviewed and set aside,” the judge said.
The review application, launched by the Helen Suzman Foundation, was brought in a bid to prevent the Zimbabweans from becoming illegal foreigners at the end of this week.
In September last year, the minister decided to terminate the ZEP programme and to refuse any further exemptions.
Central to this application was the legality of the decision to terminate the rights extended to 178,000 ZEP holders, thereby bringing an end to the basis on which a multitude of these people have built their lives, homes, families and businesses in South Africa.
Judge Collis noted that this was a case of considerable public significance, not only to all ZEP holders, but to the Department of Home Affairs as well.
While the minister has recently extended the grace period by a further six months, until June 30, his decision to end the ZEP programme remained unchanged.
The court said Home Affairs had failed to disclose any information or documents that the minister consulted on the conditions in Zimbabwe before reaching his decision.
Nor has the minister deposed to an affidavit explaining his decision-making process and what information he considered.
“As a result, and in the absence of any transparency on the part of the respondents, in circumstances where the respondents have a duty to take this court into their confidence but have not, we must conclude that the minister failed to prove a justification based on facts which is rational between the limitation of rights on the one hand and legitimate governmental purpose or policy on the other,” the court said.
In a second related case, brought by the Zimbabwe Immigration Federation, Home Affairs also lost.
The department may not detain or deport any holder of a ZEP permit pending a review application brought at a later date, against the minister’s decision to withdraw the exemptions.
The court made it clear that the review application had to be brought within 12 months.